Article: Electorial Regimes and the Proscription of Anti-Democratic Parties

John Finn, "Electorial Regimes and the Proscription of Anti-Democratic Parties" ("Terrorism and Political Violence", 12 [3-4], autumn 2000:
pp. 51-77):

www.informaworld.com/smpp/content~content=a788818810&db=all

Abstract: "Elections are central to the theory and practice of constitutional democracy. A decision to exclude particular groups from the political process represents a fundamental choice about the nature and character of legitimate political conflict. Whether in the form of a constitutional ban, as in the case of Article 21 of the Federal Republic of Germany's Basic Law, or in statutory form, as in the US Internal Security Act of 1950, the exclusion of anti-democratic parties constrains the universe of what a people may will and determines who is entitled to participate in the political sphere. Assessing how such proscriptions affect the level and likelihood of political violence requires strict, systematic scrutiny. It leads us to ask a series of questions about which factors motivate exclusion, on what rational grounds such restrictions may be justified, and if and under what conditions the democratic experiment is advanced by such bans. Moreover, the exclusion of anti-democratic parties in transitional states, where democracy is still in its nascent and therefore tenuous stage, may provide for interesting case studies in addressing the issue of how limits on self-governance affect the strategies of political parties as well as regime legitimacy."

Excerpts: "Elections provide much of the political and moral capital behind the state's condemnation of political violence as a means of securing legitimate political change [...], especially in a political universe where non-democratic means of legitimation, such as monarchic rule or appeals to communism, no longer provide a certain or reliable means to legitimacy. [...] I consider one aspect of electoral design, largely overlooked by lawyers and political scientists alike, namely constitutional provisions that proscribe anti-democratic political parties and organizations. Such bans are a common feature of twentieth century constitutions. [...] In every case, the inclusion of such provisions is predicated on the claim that some points of political conflict are no longer open to discussion (e.g., the adoption of democratic and constitutional forms themselves). Continued contest over those forms is a type of political activity that cannot be subsumed, in other words, within the confines of those constitutional forms. Proscription rules, like other rules that regulate the electoral process, thus represent an effort to end or, more often, to change the nature of the conflict. [...]

"[Proscription] rests upon a claim that some kinds of political choices and norms (those that embrace democratic processes) are inherently superior to others. [...] Proscription is typically applied to political parties – and sometimes to other organizations – that advance anti-democratic programmes. In the normal course, [...] it may be difficult to come to any shared, much less principled, understanding of what constitutes an 'anti-democratic' ideology or programme. Most constitutional provisions speak in grand generalities [...]. Proscribing antidemocratic political parties may help to contribute to the stability of otherwise fragile democratic regimes [...]. On the other hand, exclusion can work in ways that undercut the integrating and binding functions attributed to democratic elections. Excluding opponents may contribute to their sense of alienation and isolation, making them more likely to resort to violence. [...]

"[T]he use of such provisions may have a chilling effect on political dialogue more generally. This may take the form of self-censorship by timid parties or a fearful populace, or it may provide the basis for more aggressive state efforts to clamp down on dissidence. [...] The many possibilities for abuse, coupled with the ease with which banned parties manage to circumvent their bans, either by going underground, by forming party militias, or by simply reincorporating themselves, suggests that proscription provisions are unlikely to contribute meaningfully to democratic consolidation and maintenance. [...] As a matter of abstract democratic or constitutional theory, these provisions present no insurmountable problems, especially if (1) there is included in those theories a recognition that democracies are inherently fragile not only in space but also in time; and (2) a more sophisticated understanding is adopted, also temporal, of the people that constitute the democratic community."

John E. Finn is Professor of Government at Wesleyan University.